* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-41659

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MANUEL SANCHEZ-VASQUEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-02-CR-356-1

--------------------

Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Jesus Manuel Sanchez-Vasquez appeals his sentence following

a guilty-plea conviction for possession with intent to distribute

marijuana. Sanchez argues that the district court erred in

increasing his base offense level by two levels pursuant to

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm and in

determining that he was ineligible under the “safety-valve”

provision in U.S.S.G. § 5C1.2.
No. 02-41659

-2-

Section 2D1.1(b)(1) calls for a two-level increase in the

offense level for a drug trafficking offense “[i]f a dangerous

weapon (including a firearm) was possessed.” “The adjustment

should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” 

U.S.S.G. § 2D1.1, comment. (n.3). The Government meets its

burden of proof under U.S.S.G. § 2D1.1 by “provid[ing] evidence

that the weapon was found in the same location where drugs or

drug paraphernalia are stored or where part of the transaction

occurred.” United States v. Jacquinot, 258 F.3d 423, 430 (5th

Cir. 2001), cert. denied, 534 U.S. 1116 (2002)(internal quotation

marks and citation omitted). 

The Government met its burden here by providing evidence, as

set forth in the Presentence Report, that a loaded .9mm Beretta

semi-automatic pistol was found on top of a cabinet approximately

two or three feet away from the marijuana in a storage room for

which Sanchez had the key. Although Sanchez contends he had no

knowledge of the firearm, “[n]either the sentencing guidelines

nor the case law requires that the Government prove a defendant

had knowledge of a weapon’s existence.” United States v. Flucas,

99 F.3d 177, 179 (5th Cir. 1996). Furthermore, the district

court implicitly rejected Sanchez’s testimony by concluding that

he constructively possessed the firearm. See id. We find that

the district court did not clearly err in making such findings

and credibility determinations. 
No. 02-41659

-3-

** Section 5C1.2(2) is found in the 2001 edition of the

Guidelines, which was used in Sanchez’s case, at U.S.S.G.

§ 5C1.2(a)(2). 

Contrary to Sanchez’s contentions, “despite any difference

in semantics between § 2D1.1(b)(1) and § 5C1.2(2),** the two

provisions should be analyzed analogously.” United States v.

Vasquez, 161 F.3d 909, 910, 913 (5th Cir. 1998). The district

court’s finding that Sanchez possessed a firearm for purposes of

U.S.S.G. § 2D1.1(b)(1) also “disqualified [him] from being

eligible for the ‘safety valve’ provision of U.S.S.G. § 5C1.2.” 

Flucas, 99 F.3d at 178-79. Because Sanchez has failed to show

that the district court erred in imposing the U.S.S.G.

§ 2D1.1(b)(1) enhancement, he consequently has also failed to

show that the district court erred in determining that he was

ineligible under U.S.S.G. § 5C1.2. See id.; Vasquez, 161 F.3d at

912-13. 

Sanchez’s reliance on United States v. Wilson, 105 F.3d 219

(5th Cir. 1997), is misplaced because, unlike Wilson, there was

simply no evidence that another individual carried the firearm at

issue. Under the circumstances of this case, Vasquez instructs

that the same analysis be used for interpreting U.S.S.G.

§ 5C1.2(a)(2) and U.S.S.G. § 2D1.1(b)(1). See 161 F.3d at 911-12

& n.1. 

Accordingly, the district court’s judgment is AFFIRMED.